Effect of The Human Rights Act 1998

Section 3(1) of the Human Rights Act 1998 provides that: “So far as it is possible to

do so, primary legislation and subordinate legislation must be read and given effect in

a way which is compatible with the Convention rights.” Whilst this does not “affect

the validity, continuing operation or enforcement of any incompatible primary

legislation,” or “affect the validity, continuing operation or enforcement of any

incompatible subordinate legislation,” national legislation must be completely

incapable of being compatible with the European Convention on Human Rights for

the Courts in the UK to deliver a ‘declaration of incompatibility’, rather than to

construe the legislation in favour of the party relying upon a Convention right.

Regarding the interpretation of the Convention rights, section 2(1) of the Human

Rights Act 1998 states: “A court or tribunal determining a question which has arisen

in connection with a Convention right must take into account any – (a) judgment,

decision, declaration or advisory opinion of the European Court of Human Rights, (b)

opinion of the Commission given in a report adopted under Article 31 of the

Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of

the Convention, or (d) decision of the Committee of Ministers taken under Article 46

of the Convention, whenever made or given, so far as, in the opinion of the court or

tribunal, it is relevant to the proceedings in which that question has arisen.” The Court

has held that, when scrutinizing executive decisions and determining their complience

with the Human Rights Act, section 2 of this Act compels them to take into account

the jurisprudence of the European Court of Human Rights. However, it has been

made clear that “The [courts] are not bound by the decisions of the European Court.”

This was confirmed in the case of Boyd v The Army Prosecuting Authority.

However, in the case of R v Secretary of the State for the Home Department, a case

concerning an alledged breach of Article 8 of the ECHR; it was held, in reliance on

the cases of Campbell v United Kingdom and R. v Secretary of the State for the

Home Department (Ex p. Leech), that when assessing the validity of an executive

action, the court must rule on the proportionality of the executive decision in question.

Article 8(2) of the ECHR states: “There shall be no interference by a public authority

with the exercise of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of national security, public safety or

the economic well-being of the country, for the prevention of disorder or crime, for

the protection of health or morals, or for the protection of the rights and freedoms of

others.” The Queen’s Bench held that where an executive decision sought to

infringe Article 8(1) of the ECHR, that an investigation into the proportionality of that

decision is required by virtue of Article 8(2) of that Convention.

From these recent case decisions it is immediately clear that the Human Rights Act

1998 has had a major impact on the pre-existing public law framework of the United

Kingdom. The Courts are bound to interpret national legislation in accordance with

the rights contained in the ECHR, even where this means that national legislation has

to be interpreted beyond its literal or purposive scope, and the Courts have show

increasing willingness to be influenced by European jurisprudence when interpreting

the Convention. On top of this, it seems that the case of R v Secretary of the State for

the Home Department has introduced ‘proportionality’ as a new grounds for

commencing a judicial review of an exectuive decision.

To this extent, the Human Rights Act 1998 must be considered a tenet of the

constitution of the United Kingdom, at least to the extent that it impacts upon the

scope of the legitimate powers of the executive. However, that being said, section 3(2)

of the Human Rights Act and the interpretation of this section by the House of Lords

in the case of R v A (No.2) does suggest that where the legislative enact legislation

which purports to expressly limit the scope of a Convention right, the Courts are not

entitled to rules in favour of a claimant, by reinterpreting that provision.

Let us now ask ourselves an important question: For an Act to be constitutional surely

it must be the case that the legislature cannot bypass its provisions, while it remains in

force, simply by indicating its intent to do so, or acknowledging that it does so?

Let us therefore turn to examine how the Courts deal with cases where legislation is

completely incompatible with the rights conferred under the ECHR, or where the

government have acknowledged that a new Bill is incompatible with the ECHR:

In regards to incompatible legislation, section 4(2) of the Human Rights Act 1998

states: “If the court is satisfied that [a] provision is incompatible with a Convention

right, it may make a declaration of that incompatibility.” Section 4(4) of the Act goes

on to provide that: “If the court is satisfied- (a) that the provision is incompatible

with a Convention right, and (b) that (disregarding any possibility of revocation) the

primary legislation concerned prevents removal of the incompatibility, it may make a

declaration of that incompatibility.” The effect of such a declaration, however, is

neither to render that legislation invalid and ineffective, nor to provide the parties in

the case with a form of redress, but rather to alert the executive that the legislation in

question is incompatibe. Despite the fact that the Courts have made it clear that a

declaration of incompatibility is a “last resort”, in order to argue that the Human

Rights Act 1998 is a constitutional enactment, it must be shown that where the

legislative have introduced legislation which is incompatible with its provisions, that

they have acted beyond their constitutional powers.

In regards to ‘statements of compatibility’, it is clear that the legislature are legally

entitled to enact a Bill without such a statement, as per s19(1)(b) of the 1998 Act. An

example of such an Act is the Sexual Offences Act 2005. This must be deemed to

undermine the UK’s commitment to abiding by the rights enshrined in the ECHR.

Earlier in this essay we have asked the question: For an Act to be constitutional surely

it must be the case that the legislature cannot bypass its provisions, while it remains in

force, simply by indicating its intent to do so, or acknowledging that it does so? In

light of the fact that the Act does not impose any duty of action on the executive to

amend incompatible legislation, nor to make sure legislation is compatible before it is

enacted, it cannot be said to undermine the constitutional nature of this Act because

the legislature are not acting outside of the scope of their powers in the legislation.

If this argument is correct, then we must ask ourselves what characteristics of the

Human Rights Act 1998 suggests that it ‘has found a place at the heart of the

constitution of the United Kingdom’?

In the case of Thoburn v Sunderland City Council, Lord Justice Laws defined a

‘constitutional statute’ in the following terms: “In my opinion a constitutional statute

is one which (a) conditions the legal relationship between citizen and State in some

general, overarching manner, or (b) enlarges or diminishes the scope of what we

would now regard as fundamental constitutional rights. (a) and (b) are of necessity

closely related: it is difficult to think of an instance of (a) that is not also an instance

of (b).”

We have already seen how the Courts have used the Act to give significant force to

the ECHR, interpreting legislation widely to give effect to the Convention rights,

allowing decisions by public bodies to be challenged for being a disproportionate

breach of Convention rights and only issuing declarations of incompatibility as a ‘last

resort’. These features of the Human Rights Act 1998 and the way it has been applied

by the Courts certainly satisfies Lord Justice Laws’ definition.

This supports the contention that the Human Rights Act 1998 is part of the

constitution of the UK, but does not confirm whether it has truly found a place at the

heart of the constitution. Let us now look at recent political developments that serve

to undermine this assertion:

In England there is currently much talk about the possibility of repealing the Human

Rights Act. For example, in 2006 David Cameron made a public statement that the

Conservatives would “scrap, reform or replace” the Human Rights Act unless the

government [could] reach a memorandum of understanding to enable foreign

criminals to be deported to their countries of origin”. [Guardian, May 12 2006].

Likewise, a recent Review of the Implementation of the Human Rights Act, stated: “it

is worth considering briefly an option which has been subject to recent comment. This

would be the option of repealing the Human Rights Act and enacting a separate set of

fundamental rights which would not, in law, be connected to the European

Convention on Human Rights. The suggestion is that these rights could be given some

sort of entrenched or superior status in our constitution.” [DCA, 2006, p5].

These sources strongly imply that the Human Rights Act 1998 has not found a place

in the heart of our constitution, despite there being little doubt about its constitutional

nature. In the final section of this paper, let us turn our attention to the place of the

Human Rights Act 1998 in the constitution of Scotland, and its prospects for the

future in this devolved jurisdiction:

In Scotland, the purposes of the Human Rights Act 1998 were given greater force by

the introduction of the Scotland Act 1998. Section 29 of this Act states: “(1) An Act

of the Scottish Parliament is not law so far as any provision of the Act is outside the

legislative competence of the Parliament. (2) A provision is outside that competence

so far as any of the following paragraphs apply – (d) it is incompatible with any of

the Convention rights or with Community law.” This goes much further than the

Human Rights Act 1998 which allows UK Parliament to enact incompatible

provisions as long as an assessment has been made in accordence with s19(1)(b) of

the Act.

Coupled with the recent enactment of the Scottish Commission for Human Rights Act

2006, which established the Scottish Commission for Human Rights, it seems clear

that the ECHR has found a central place in the constitution of the devolved

jurisdiction of Scotland. However, in response to the statement at the top of this

paper, we can hardly say that these developments put the Human Rights Act at the

heart of the constitution of the United Kingdom; after all, these developments do not

pertain to the Human Rights Act 1998, except in so far as this Act is used to define

the Convention rights which are to be adhered to by the Scottish executive.

Conclusion

In conclusion, whilst the Human Risghts Act 1998 can certainly be described as a

constitution enactment, recent political developments in the UK which suggest that

this Act might soon be repealed undermine the contention that the 1998 is ‘at the

heart’ of the constitution of the United Kingdom.

In Scotland, the Human Rights Act 1998 can only be said to be at the heart of the

constitution to the extent that this Act is referred to by the Scotland Act 1998, an Act

which goes much further in granting legal protection to scotish citizens for breaches

of Convention rights than the 1998 Act.